Catharine MacKinnon May Not Be Enough: Legal Change and Religion in Catholic and Sunni Jurisprudence

Abstract

This article asserts that legal change in systems influenced by religion requires a legitimizing hermeneutic rooted in sacred texts and tradition. I argue that a number scholars of legal history (Michael Klarman), feminist jurisprudence (Catharine MacKinnon, Katherine Bartlett and Elizabeth Schneider) and narrative theory (Jacques Derrida, Richard Delgado and Jean Stefancic) explicitly or implicitly accept that legal reform is in some sense determined by underlying social shifts attributed variously to public opinion, consciousness or narrative. Although I generally agree with this view, my research comparing the law and theory governing divorce and leadership by women in Roman Catholicism and Sunni Islam indicates that religious communities require the additional step of a hermeneutic to validate legal change. Thus, proposed legal reform in cultures influenced by religious thought (even if only on select issues) ought to address hermeneutics in order to be successful.

Keywords: Law and Religion, Women and Law, Feminist, Islamic, Catholic, Comparative, Gender, Legal Theory, Jurisprudence

JEL Classification: N40